ON THE ROLL: 31 August 2009
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 11206/08
In the matter between:
JUSTICE ALLIANCE OF SOUTH AFRICA First Applicant
FALSE BAY GUN CLUB Second Applicant
And
NATIONAL MINISTER OF SAFETY & SECURITY First Respondent
NATIONAL COMMISSIONER OF SAPS
(REGISTRAR OF FIREARMS) Second Respondent
APPEAL BOARD OF FIREARMS Third Respondent
______________________________________________________________
APPPLICANTS‟ HEADS OF ARGUMENT
______________________________________________________________
2
CONTENTS
Page No(s)
INTRODUCTION ………………………………………………………. 3–5
GERHARDT, SIGABA AND TANTOUSH ………………………….. 6 – 10
THE FACTS ……………………………………………………………. 10 – 17
THE CONSTITUTION ………………………………………………… 18 – 25
THE FIREARMS ACT ………………………………………………… 26 – 33
THE MINISTER‟S FAILURE TO ESTABLISH GUIDELINES …… 34
THE REMEDY ………………………………………………………… 34 – 39
3
INTRODUCTION
1. This application concerns the constitutionality of provisions of the law and
conduct - or failure to act - by the executive in respect of firearms control
measures.
2. This matter involves not only important constitutional rights contained in
the Bill of Rights,1 but also the failure of the Respondents to comply with
the obligations contained in the Constitution relating, inter alia, to the basic
values and principles governing public administration as set out in section
195(1) of the Constitution as well as the rule of law and principle of legality
as contained in section 1 of the Constitution.
3. The Firearms Control Act No. 60 of 2000 (“the Firearms Act”) was
enacted in 20012 to establish a comprehensive and effective system of
firearms control3 with the purpose, inter alia, of enhancing the
constitutional rights to life and bodily integrity and to ensure the efficient
monitoring and enforcement of legislation pertaining to the control of
firearms.4
1
The rights to property (section 25 of the Constitution), just administrative action (section 33 of
the Constitution), and access to court (section 34 of the Constitution).
2
It was assented to on 4 April 2001.
3
The preamble to the Firearms Act.
4
Section 2 of the Firearms Act.
4
4. The Applicants do not take issue with the aims and purposes of the
Firearms Act in general. However, they contend there are certain aspects
of the Firearms Act and, more particularly, its implementation and
application by the responsible officials, which are inconsistent with the
Constitution and invalid.
5. The concerns relate to the scheme set up and its implementation in
relation to the payment of compensation under section 137 of the
Firearms Act (“the compensation scheme”).
6. The Applicants submit that not only are the aspects of the legislation
setting up the compensation scheme unconstitutional, but that the Minister
of Safety and Security, the First Respondent, has failed to comply with his
statutory and constitutional duties underpinning the compensation
scheme.
7. In these heads of argument we deal in turn with:
7.1 the facts;
7.2 the supremacy of the Constitution;
7.3 the Firearms Act;
5
7.4 the Minister’s failure to establish guidelines; and
7.5 lastly, the appropriate remedy.
8. Prior to dealing with the substantive issues described above three, by now
trite, principles are analysed.5 The three principles are relevant and
dictate how this Court is to consider the evidence adduced by the parties.
9. In considering this matter we also stress the constitutional principles of
avoidance6 and reading down.7 That is that a Court should resolve a
dispute if it can without reaching a constitutional issue (avoidance) and
that where a legislative provision is reasonably capable of a meaning that
is within constitutional bounds, it should be preserved (reading down).
5
We refer to them as the Gerhardt, Sigaba and Tantoush principles.
6
S v Mhlungu 1995 (3) SA 867 (CC) at 895E (para [59]); National Coalition of Gay and Lesbian
Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at 19A (para [21]);
7
Investigating Directorate Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others: In re Hyundai Motor Distributors and Others v Smit N.O. 2001 (1) SA 545
(CC) at 560A (para [26]).
6
THE THREE PRINCIPLES - GERHARDT, SIGABA AND TANTOUSH
10. In President of the Republic of South Africa v South African Rugby
Football Union (“SARFU”)8 at para [105], the Constitutional Court held that
hearsay evidence falls to be ignored, even in the absence of an objection
or an application to strike out.
11. None of the Respondents has deposed to an affidavit in this application.
They have not even deposed to confirmatory affidavits, despite the issue
having been pertinently raised in the Applicants’ replying affidavit dated 20
July 2009, where the following was stated by John Jackson Smyth
(“Smyth”):9
“5. Before dealing with the contents of the affidavits filed on behalf of the
Respondents, the Applicants point out that although Mr. Bothma in
paragraph 2 of his affidavit states that he is authorised to depose to his
affidavit on behalf of First and Second Respondents, the First and Second
Respondents have not filed confirmatory affidavits to that effect and the
allegation concerning his authority constitutes inadmissible hearsay and
falls to be ignored.
6. In this regard, I refer to the principles enunciated in the cases of Tantoush
v Government of the Republic of South Africa and Others 2008 (1) SA 232
8
2000 (1) SA 1 (CC).
9
R:172 -173.
7
paras [70] and [86], and Von Abo v Government of the Republic of South
Africa and Others 2009 (2) SA 526 (T) at para [46] where as they affirm the
principle enunciated by Goldstone J in Gerhard v President of the Republic
of South Africa and Others 1989 (2) SA 499 (T) at 504F-H that one cannot
make an affidavit on behalf of another in the absence of a confirmatory
affidavit by the other.”
Accordingly the contents of Mr Bothma’s affidavit constitute inadmissible
hearsay evidence and fall to be ignored on matters of relevance.
12. The issue of the hearsay nature of the contents of Mr Bothma’s affidavit
was expressly raised in the Applicants’ replying affidavit and the failure by
the Respondents to make any attempt to “cure” the inadmissible hearsay
is significant.
Tantoush/Sigaba
13. In Tantoush10 Murphy J at paragraph [51] stated:
“As these averments were made in the replying affidavit the second
respondent strictly speaking had no entitlement to respond to them and in
the normal course they could not be denied or explained by the
respondents. Nevertheless, if the allegations by Ms Peer were untrue, or if
an adequate explanation were possible, leave of the court could and should
have been sought to answer them - see Sigaba v Minister of Defence and
Police and another 1980(3) SA 535 (TkSc) at 550F. The respondents did not
request to be given an opportunity to deal with these averments. Their
10
Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T).
8
failure to do so tilts the probabilities towards the applicant‟s version that
the consultation occurred, that it lasted 20 minutes and that Ms Bhamjee
objected. Whether the inference of actual bias may be drawn in the light of
the second respondent‟s denial thereof is a matter to which I will return
11
later.”
Murphy J continued at para [71]:
“Moreover, as l have already intimated, where new material was introduced
in reply, the respondents could have relied upon the principle enunciated
in Sigaba v Minister of Defence and Police and another (supra) to seek
leave to file additional affidavits in the sure likelihood that such leave
would have been granted.”
Tantoush/Gerhardt
14. Murphy J also dealt with an argument concerning hearsay at para [70]:
“It was intimated in argument that the denials of the second respondent
might be extended to the fifth respondent. That cannot be so. One person
cannot make an affidavit on behalf of another. The second respondent can
only depose to matters in his own knowledge - Gerhardt v State President
and others 1989 (2) SA 499 (T) at 504G).”
15. We refer in this respect to the decision of Goldstone J in Gerhardt v State
President and Others12 regarding the importance of confirmatory
evidence.13
11
See also Sigaba v Minister of Defence and Police and Another 1980 (3) SA 535 (TkSc) at
550E-G; Pretoria Portland Cement and Another v Competition Commission and Others 2003 (2)
SA 385 (SCA) at para [63]; Da Mata v Otto NO 1972 (3) SA 858 (T) at 868G – 869E; Ngcobo J
(dissenting) in Thint (Pty) Ltd v National Director of Public Prosecutions and others: Zuma and
Another v National Director of Public Prosecutions and Others 2008 (2) SACR 421 (CC) at para
[325] and footnote 112.
12 1989 (2) SA 499 (T).
9
16. For ease of reference, we quote from Gerhardt at 504D-H:
“That interpretation of the agreement, Mr Doctor points out, has not been
answered by the State President who has, for whatever reason, seen fit not
to file any affidavit in this matter. He seeks to rely upon the affidavit of the
second respondent, ie the Commissioner of Prisons. For that purpose, for
what it is worth, he gave an authority to the Commissioner of Prisons
which reads that:
„In my hoedanigheid as Staatspresident van die Republiek van Suid-Afrika
magtig ek vir Willem Hendrik Willemse, die Kommisaris van Gevangenisse,
tweede respondent, om namens en ten behoewe van my „n antwoordende
eedsverklaring aft te le in die bogemelde aansoek.‟
Clearly one person cannot make an affidavit on behalf of another and Mr
Hattingh, who appears on behalf of the three respondents, concedes
correctly that I can only take into account those portions of the second
respondent‟s affidavit in which he refers to matters within his own
knowledge. Insofar as he imputes intentions or anything else to the State
President, it is clearly hearsay and inadmissible.” (Emphasis added).
17. In the light of these trite principles,14 the effect of the failure by any of the
Respondents to testify themselves is that Mr Bothma’s affidavit regarding
their conduct is hearsay and inadmissible.
13 See also Eveleth v Minister of Home Affairs & Another [2004] 3 All SA 322 (T) to the same effect at paras
[7] – [11].
14
These principles have recently been approved by Prinsloo J in Von Abo v President of the
Republic of South Africa and Others 2009 (2) SA 526 (T) at para [46].
10
18. In the circumstances, the entire contents of Mr Bothma’s affidavit fall to be
ignored and this Court ought to proceed on the basis of the facts set out in
the Applicants’ founding and supporting affidavits.
THE FACTS
19. As we have already mentioned, the entire contents of Mr Bothma’s
affidavit fall to be ignored. However, and in any event, there is nothing
that Mr Bothma states which detracts from the merits of the Applicants’
case. On the contrary, what he states, in particular concerning the
question of guidelines for the quantum of compensation, rather supports
the Applicants case.
20. The Applicants rely on an affidavit by Smyth to set out their case with
confirmatory/supporting affidavits from individuals who have been directly
affected by the application and implementation of the provisions of the
Firearms Act.
21. For purposes of these heads, it suffices to summarise the averments by
Smyth and one of the deponents to the confirmatory affidavits, Lionel
Frank (“Frank”), an attorney practising as such in Malmesbury, Western
11
Cape.15 We also touch upon averments by Graham Alexander Millar
(“Millar”) and Wouter Ryk Morkel de Waal (“De Waal”).
22. The common cause facts demonstrate the unconstitutional conduct16
displayed by the relevant Respondents viz-a-viz Frank.
A chronology of what occurred concerning Frank is alarming and displays
not only a violation of the Constitution, but also a distinct lack of common
courtesy, 17 by organs of State, who have a special duty to comply with the
law and set an example.18
23. A chronology of the correspondence between Frank and the Respondents
makes for shocking reading:
23.1 On 6 October 2005, Frank addressed a letter to the Provincial
Commander: Firearm and Liquor Control, Western Cape (the
“Provincial Commander”), requesting the guidelines the Minister
was enjoined to establish in terms of section 137(5) of the Firearms
Act.19
15
R: 20 – 22, the affidavit of Frank.
16
See, inter alia, section 195 of the Constitution, which requires public administration to comply
with the principle of transparency, which is fostered by providing the public with timely, accessible
and accurate information.
17
See Ruyobeza and Another v Minister of Home Affairs and Others 2003 (5) SA 51 (C) at 54E-
H.
18
See Mohamed v President of the Republic of South Africa and Others 2001 (3) SA 893 (CC) at
para [68].
19
R: 21, para 2 read with R: 23.
12
23.2 On 10 October 2005, Frank received a response from the
Provincial Commander informing him that his request had been
referred to the Central Firearms Register and that the Provincial
Commander undertook to inform him as soon as he had received
feedback from the Central Firearms Register.20
23.3 Frank received no response from either the Central Firearms
Register or the Provincial Commander and on 10 April 2006, he
addressed another letter to the Provincial Commander informing
him that he was still awaiting receipt of the guidelines.21
23.4 Frank stated in terms that his reasons for needing the guidelines
were that he and his clients needed to consider the guidelines
before deciding whether to hand in certain firearms and claim
compensation or whether they should apply for re-registration of the
firearms.
23.5 Frank received no response to that letter and on 2 February 2007,
he again requested the guidelines and referred to his earlier letters
of 6 October 2005 and 10 April 2006.22
20
R: 21, para 3 read with R: 24.
21
R: 21, para 4 read with R: 25 – 26.
22
R: 21, para 5 read with R: 27.
13
23.6 Frank received no response from the Provincial Commander and
on 12 September 2007, he sent another letter.23
23.7 Frank to date has not received any response from his letter dated
10 April 2006.24
23.8 On 15 November 2007, Frank received a response from the
Provincial Commander by e-mail informing him that he must claim
compensation from the Central Firearms Registrar in Pretoria.25
23.9 Frank immediately responded and informed the Provincial
Department that he did not want to claim compensation at that
stage, but that he merely wanted insight into the guidelines so that
he could make an informed decision on whether to re-register or
claim compensation and once again requested that the guidelines
be furnished to him.26
23.10 On 12 May 2008, Frank sent another e-mail to the Provincial
Commander requesting response to his e-mail dated 16 November
2007.27
23
R: 21, para 6 read with R: 28.
24
Re: 21, para 6.
25
R: 21, para 7 read with R: 29.
26
R: 21, para 8.
27
R: 22, para 9, read with R: 39.
14
23.11 On 12 May 2008, Frank received an e-mail confirmation that his e-
mail of 12 May 2008 was read,28 by whom no-one knows.
23.12 To date he has not received any further responses from the
relevant officials.
24. In summary, despite Frank having on 6 October 2005, requested a copy of
the guidelines the Minister was enjoined to establish in terms of section
137(5) of the Firearms Act, he has to date not yet received any meaningful
response.
25. He has effectively been fobbed off – to put it mildly - at every turn and is
completely in the dark as to whether or not guidelines have been
established.
26. The response by Mr Bothma in respect of the complaints by Frank, are
damning.
27. Mr Bothma admits that the correspondence and e-mails as alleged by
Frank were sent.29
28. What Mr Bothma states as far as the existence of the guidelines, is:
28
R: 22, para 10, read with R: 40.
29
R: 131, para 28.1.1.
15
“The guidelines applied in terms of section 137(5) of the Act provide that
firearms, handed in in terms of the Act for destruction, do not qualify for
compensation, because it cannot be used by the State for any purpose and
has no value at all. Only in respect of firearms retained by the State in
terms of section 149(3)(a) of the Act would compensation be payable,
30
depending on the value thereof. No other guidelines are applied or exist.”
(Underlining added).
29. In response to Mr Bothma’s reference to guidelines,31 the Applicants
served a notice in terms of Rule 35(12) requesting access to copies of the
guidelines referred to.32
30. The response by the Respondents to the Applicants’ Rule 35(12) notice
was that “they are not contained in a document, but are derived” from the
provisions of the Firearms Act.33
31. The Respondents’ response to the Rule 35(12) notice is to the effect that
the only guidelines that exist relate to the issue of whether compensation
is payable and that issue is determined by the provisions of the Firearms
Act.
30
R: 131, para 28.1.2.
31
R: 131, para 28.12.
32
R: 188, para 7 read with R: 191, annexure “JJ5”.
33
R: 189, paras 9 – 10, R: 193, annexure “JJ6”.
16
32. There is no factual dispute that no guidelines have been established on
the issue of the quantum of compensation.
33. Smyth sets out certain contentions concerning the constitutionality of the
Firearms Act and makes averments which have, because of the hearsay
nature of Mr Bothma’s affidavit, not been put in issue.
34. Smyth, inter alia, states:
“Section 137(5) requires the First Respondent to draw up guidelines for the
34
payment of compensation. He has failed to do so.”
Mr Bothma deals with this averment at para 34.5.35 Mr Bothma states:
“The applicable guidelines involve that no compensation will be paid in
respect of firearms which are destroyed. Compensation will be payable in
respect of firearms that are retained by the State and which become the
property of the State, depending on the value thereof.”
35. Millar states that he attended on Superintendent Nel at Claremont Police
Station,36 who told him that:
37
“There is no compensation for handing in guns.”
34
R: 9, para 9.2.
35
R: 141 – 142.
36
R: 49, para 3.
17
36. De Waal states that Inspector Fourie at Bellville Police Station told him
(and it is not denied) all those who had claimed compensation had been
denied “because it’s done voluntarily”.38
37. The evidence makes it clear that the public are not being assisted in
efforts to protect their rights when they make application for compensation
under the Firearms Act. Not only are they not being assisted, but they are
being blocked from even being able to determine what their rights are.
38. Before dealing with the provisions of the Firearms Act, we turn to the
constitutional principles which govern this matter.
37
R: 49, para 4. It is significant that Mr Millar’s averments are not denied. See R: 135-136, para
31.
38
R: 72, para 2 read with R: 136-137, para 32.
18
THE CONSTITUTION
39. The Constitution is the highest law. The supremacy clause in the
Constitution is contained in section 2, which provides:
“This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled”.
(Emphasis added).
40. Section 1 of the Constitution articulates the foundational values of the
Constitution in the following way:
“The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the Constitution and the rule of law.
(d) Universal adult suffrage, a national common voters‟ roll,
regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and
openness.”
(Underlining added).
41. The centrality of the Bill of Rights and its foundational values to South
Africa’s democracy is expressed in section 7 of the Constitution:
“Rights
19
7(1) This Bill of Rights is a cornerstone of democracy in South
Africa.
It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality
and freedom.‟
(2) The State must respect, protect, promote and fulfil the rights in
the Bill of Rights.”
(Underlining added)
42. The guarantee of the rule of law in section 1(c) is constitutionally
justiciable. The Constitutional Court has relied on section 1(c) to develop
a range of constitutional principles flowing from the rule of law. These
include:
43.1 The Constitution creates an ethos of accountability. The State and
its officials, where appropriate, must be called to answer for their
actions and must be subject to judicial scrutiny. It is submitted under
the chapter on remedy that accountability is required in the context of
this case and will be achieved, inter alia, by an order compelling the
Minister to comply with his statutory and constitutional duty to
establish guidelines within a fixed period and the making of a punitive
costs order.
20
43.2 The legality principle that the legislature and all executive organs of
State can exercise only those powers conferred lawfully on them.39
44.1 The principle that executive action cannot be arbitrary. 40
44.2 The principle that executive action must be rational.41
43. In Minister of Public Works v Kyalami Ridge Environmental Association
2001 (3) SA 1151 (CC) at [34]-[36] the Constitutional Court stated:
“[34] In Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others this Court held:
'(I)t is a fundamental principle of the rule of law, recognised widely,
that the exercise of public power is only legitimate where lawful.
The rule of law - to the extent at least that it expresses this principle
of legality - is generally understood to be a fundamental principle of
constitutional law.'
Later in the same judgment it is said that
'(i)t seems central to the conception of our constitutional order that
the Legislature and Executive in every sphere are constrained by
the principle that they may exercise no power and perform no
function beyond that conferred upon them by law. At least in this
39
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999
(1) SA 374 (CC) at paras [56]-[59]; President of the Republic of South Africa v South African
Rugby Football Union 2000 (1) SA 1 (CC) at para [148].
40
Pharmaceutical Manufacturers Association of South Africa and another: In re: Ex Parte
President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (“Pharmaceutical
Manufacturers”) at paras [83]-[85].
41
New National Party v Government of the Republic of South Africa 1999 (3) SA 191 (CC) at
para [24]; Pharmaceutical Manufacturers at para [85].
21
sense, then, the principle of legality is implied within the terms of
the interim Constitution.'
The Constitution now states explicitly that the rule of law is a
foundational value of our legal order.
[35] It follows that government can only establish transit camps for the
victims of the floods if the power to do so is conferred on it by law.
What has to be decided in the present case is whether the
government has such power and, if so, whether it acted in terms of its
powers when it decided to establish a transit camp on the prison
farm.
[36] The Constitution makes provision for a separation of powers between
the Legislature, the Executive and the Judiciary. This separation
ordinarily implies that the Legislature makes the laws, the Executive
implements them and the Judiciary determines whether, in the light of
the Constitution and the law, conduct is lawful or unlawful. Though
the separation prescribed by the Constitution is not absolute, and on
occasions some overlapping of functions is permissible, action that
is inconsistent with the separation demanded is invalid.”
44. Section 195 of the Constitution is also of relevance.
45. Mokgoro J (dissenting) in Van der Merwe and Another v Taylor NO and
Others,42 at paras 71] – [72] states:
[71] Section 1 of the Constitution, read with s 195, indeed sets high
standards of professional public service as applicants submit. It requires
ethical, open and accountable conduct towards the public by all organs of
State. These are basic values for achieving a public service envisaged by
42
2008 (1) SA 1 (CC).
22
our Constitution, which requires the State to lead by example. In this case,
the State has failed to do so.
[72] The remissness on the part of the respondents should not be
countenanced. Correctly so, none of the respondents attempted to defend
it. In this constitutional era, where the Constitution envisages a public
administration which is efficient, equitable, ethical, caring, accountable and
respectful of fundamental rights, the execution of public power is subject
to constitutional values. Section 195 reinforces these constitutional ideals.
It contemplates a public service in the broader context of transformation as
envisaged in the Constitution and aims to reverse the disregard, disdain
and indignity with which the public in general had been treated by
administrators in the past. Section 195 envisions that a public service
reminiscent of that era has no place in our constitutional democracy. The
remissness on the part of the respondents is not conducive to the current
efforts of public service transformation. It must certainly be discouraged.
In that context the conduct of the respondents is indeed contrary to ss 1
and 195 of the Constitution, as the applicants submit. Although the
applicants submitted that the respondents‟ conduct was inconsistent with
ss 1 and 195 of the constitution, they did not claim that it constitutes a
basis for a self-standing cause of action. I will therefore not determine that
question.” (Footnotes omitted).
23
The constitutional requirement of guidelines43
46. When members of the executive or government officials, such as the
Registrar, make decisions which affect rights, the legislature is obliged
(constitutionally), to provide guidelines as to the how the decisions are to
be made.
47. In Dawood, 44 O’Regan stated:
“[50] The foregoing discussion assists in determining the interpretation of
the relevant provisions that would best “promote the spirit, purport and
objects of the Bill of Rights”. In the case of the statutory discretion at hand,
there is no provision in the text providing guidance as to the circumstances
relevant to a refusal to grant or extend a temporary permit. I am satisfied
that in the absence of such provisions, it would not promote the spirit,
purport and objects of the Bill of Rights for this Court to try to identify the
circumstances in which the refusal of a temporary permit to a foreign
spouse would be justifiable. Nor can we hold in the present case that it is
enough to leave it to an official to determine when it will be justifiable to
limit the right in the democratic society contemplated by section 36.
[73]
[53] Discretion plays a crucial role in any legal system. It permits
abstract and general rules to be applied to specific and particular
43
See Hoexter, Administrative Law in South Africa (2007) at 45-46.
44
Dawood and Another v Minister of Home Affairs and Others: Shalabi and Another v Minister of
Home Affairs and Others: Thomas and Another v Minister of Home Affairs and Others 2000 (3)
SA 936 (CC) (“Dawood”).
24
circumstances in a fair manner. The scope of discretionary powers
may vary. At times, they will be broad, particularly where the factors
relevant to a decision are so numerous and varied that it is
inappropriate or impossible for the legislature to identify them in
advance. Discretionary powers may also be broadly formulated where
the factors relevant to the exercise of the discretionary power are
indisputably clear. A further situation may arise where the decision-
maker is possessed of expertise relevant to the decisions to be made.
There is nothing to suggest that any of these circumstances is present
here.
[54] We must not lose sight of the fact that rights enshrined in the Bill of
Rights must be protected and may not be unjustifiably infringed. It is for
the legislature to ensure that, when necessary, guidance is provided as to
when limitation of rights will be justifiable. It is therefore not ordinarily
sufficient for the legislature merely to say that discretionary powers that
may be exercised in a manner that could limit rights should be read in a
manner consistent with the Constitution in the light of the constitutional
obligations placed on such officials to respect the Constitution. Such an
approach would often not promote the spirit, purport and objects of the
Bill of Rights. Guidance will often be required to ensure that the
Constitution takes root in the daily practice of governance. Where
necessary, such guidance must be given. Guidance could be provided
either in the legislation itself, or where appropriate by a legislative
requirement that delegated legislation be properly enacted by a
[74]
competent authority.
48. The Firearms Act, consistent with the constitutional principles referred to
in Dawood, requires the Minister to establish guidelines as to the quantum
25
of compensation to be paid in respect of firearms surrendered or forfeited
to the State.45
49. In Steenkamp NO v Provincial Tender Board, Eastern Cape,46 Moseneke
DCJ dealt with the issue of whether in that application a constitutional
issue was raised. At paragraph [20] he stated:
“[20]…It bears repetition that the exercise and control of public power is
always a constitutional matter. Section 195 of the Constitution further
qualifies the exercise of public power by requiring that public
administration be accountable, transparent and fair.”
(Footnotes omitted).
45
See section 137(5) of the Firearms Act read with section 137(6) and section 137(2).
46
2007 (3) SA 121 (CC).
26
THE FIREAMS ACT
50. The Firearms Control Act No 60 of 2000 was assented to on 4 April 2001.
Its date of commencement was 1 July 2004.47
51. The purpose of the Firearms Control Act was to establish a
comprehensive and an effective system of firearms control.48
52. The preamble to the Act makes it clear that everyone has the right to life
and the right to security of the person and that includes the right to be free
from all forms of violence from either public or private sources and that the
increased availability and abuse of firearms has contributed significantly to
the high levels of violence in South African society.49
53. The Firearms Act repeals the whole of the Arms and Ammunition Act No
75 of 1965 (“the Arms and Ammunition Act”).50
54. The Firearms Act states that the Registrar means the person referred to in
section 123 and section 123 refers to the Registrar as the National
Commissioner, who, in section 1, is defined to mean the National
47
R: 8, para 7.
48
Short title of the Firearms Act.
49
Preamble to the Firearms Act and section 2.
50
Schedule 3 of the Firearms Control Act read with section 153.
27
Commissioner of the South African Police Service appointed in terms of
section 207(1) of the Constitution.
55. The Appeal Board is an Appeal Board established by section 128.
56. The Registrar may delegate certain powers and assign duties by virtue of
the provisions of section 141. It provides:
“(1) The Registrar may delegate any power conferred on him or her and
assign any duty imposed on him or her or by or under this Act to
any official in the service of the State.
(2) An official to whom a power has been delegated or a duty has been
assigned in terms of sub-section (1) must exercise the power or
perform the duty subject to the control and directions of the
Registrar.
(3) The Registrar may, notwithstanding a delegation or assignment in
terms of sub-section (1), personally exercise the power or perform
the duty delegated or assigned to another official.”
57. Chapter 2 provides for the prohibition in respect of the possession of
firearms.
Thus, section 3 states:
28
“No person may possess a firearm unless he or she holds a licence, permit
51
or authorisation issued in terms of this Act for that firearm.”
58. Chapter 6 (sections 11 – 30), deal with licences to possess firearms.
59. Section 11 gives the Registrar the duty to issue a separate licence in
respect of each firearm licensed in terms of the Chapter.
60. Section 13(3) provides:
“No person may hold more than one licence issued in terms of this
section.”
61. The Firearms Act thus provides a new and different regime for firearms’
ownership from that of the Arms and Ammunition Act.
62. The Legislature recognised that there would be persons whose rights of
ownership of firearms would be affected by the new regime.
63. Accordingly, Chapter 19 entitled “Compensation”, (sections 134 – 137)
was enacted to give effect to the compensation scheme, which was set up
to afford protection to those affected by the new, more restrictive system
of firearms control.
51
Section 4 is a prohibition on certain types of firearms.
29
64. Section 137 of the Firearms Act states:
“(1) A person whose firearm has been surrendered or forfeited to the
State in circumstances other than those referred to in sections
52 53 54
134 , 135 and 136 may apply to the Registrar for compensation
in respect of that firearm in the prescribed form.
52
Section 134 dealing with forfeiture provides:
“Circumstances where no compensation is payable in respect of firearms and ammunition
forfeited to State
No compensation is payable to a person in respect of a firearm or ammunition forfeited to
the State in terms of this Act-
(a) if the relevant licence, permit or authorisation was cancelled in terms of
this Act because the holder of the licence had contravened or not
complied with a provision of this Act or a condition specified in that
licence, permit or authorisation; or
(b) if the holder of the licence, permit or authorisation became or was in
terms of section 102 or 103 declared unfit to possess a firearm.”
53
Section 135 dealing with seizure provides:
“Circumstances where no compensation is payable in respect of firearms and ammunition seized
by State
(1) No compensation is payable to a person from whom a firearm or ammunition was
seized by the State if-
(a) no licence permit, or authorisation had been issued for such firearm or
ammunition to that person in terms of this Act; or
(b) the firearm or ammunition was for any other reason unlawfully in the
possession of that person.
(2) The lawful owner of a firearm or ammunition lost or stolen as a result of his or her
negligence is not entitled to claim compensation if such firearm or ammunition is
subsequently seized by the State from another person.”
54
Section 136 dealing with destruction by the State provides:
“No compensation payable where firearms or ammunition are destroyed by State
(1) The Registrar may in respect of any firearm or ammunition seized by,
surrendered to or forfeited to the State, issue a notice in the Gazette stating that
it is the intention of the State to destroy that firearm or ammunition.
(2) Any person who has a valid claim to the relevant firearm or ammunition may,
within 21 days after the publication of the notice in the Gazette, make
representations to the Registrar as to why the firearm or ammunition should not
be destroyed.
(3) If the Registrar is satisfied, after consideration of any representations
contemplated in subsection (2), that a valid claim to the relevant firearm or
ammunition has not been proved, the firearm or ammunition may be destroyed
and no compensation will be payable to anyone in respect thereof.”
30
(2) On receipt of an application for compensation made in terms of this
section, the Registrar must-
(a) decide whether or not compensation is payable in terms of
this Chapter;
(b) if compensation is payable, attempt to agree with the
applicant on the amount of compensation to be paid; and
(c) if compensation is payable, but no compensation is agreed
upon, determine the amount of compensation to be paid.
(3) An applicant for compensation may appeal against a decision of the
Registrar made in terms of subsection (2) (c).
(4) On receipt of an appeal lodged in terms of subsection (3) the
Appeal Board must-
(a) hear the applicant and the Registrar; and
(b) determine the amount of compensation to be paid.
(5) The Minister must, with the approval of the Minister of Finance,
establish guidelines for the payment of compensation, taking into
account the-
(a) financial constraints on the State and its ability to meet
actual and anticipated claims for compensation; and
(b) interests of persons who have applied or may in the future
apply for compensation.
(6) The guidelines referred to in subsection (5) bind-
(a) the Registrar when he or she agrees or determines
compensation in terms of subsection (2); and
31
(b) the Appeal Board when it determines compensation in
terms of subsection (4).
(7) A person who is not satisfied with the amount of compensation or the
time or manner of payment as determined by the Appeal Board, may
approach a court to determine the amount, the time and the manner of
payment of the compensation.”
(Our emphasis).
65. Section 137 effectively provides that the Registrar must decide that
compensation is payable in terms of Chapter 19 in respect of applications
made in terms of section 137.55 The amount of compensation falls to be
determined in accordance with the guidelines established by the Minister.
66. This action may appropriately be regarded as a pure administrative act. 56
Once the jurisdictional facts are established the Registrar has no
jurisdiction to refuse to grant compensation.
67. A surrender or forfeiture of a firearm to the Sate in circumstances other
than those referred to in sections 134, 135 and 136 will always generate
the payment of compensation.
55
Section 137(2)(a).
56
Abel v Minister of Justice and Others 2001 (1) SA 1230 (C) at para [66].
32
68. Once it is established that compensation is payable – viz that the payment
of compensation is not precluded by the provisions of sections 134, 135
and 136 - the only issue that arises is the quantum of compensation.57
69. The Registrar must attempt to agree the amount.58
70. If agreement is not possible, the Registrar is to determine the amount
payable.59
71. When the Registrar agrees (section 137(2)(b)) or determines (section
137(2)(c) the amount of compensation, he or she is bound by guidelines
established by the Minister under section 137(5).60
72. An applicant for compensation may appeal any determination of
compensation made by the Registrar to the Appeal Board61 under section
137(2)(c).
73. It is submitted that it is not possible practically or legally for the Registrar
or his or her delegate to agree to or determine the amount of
57
Section 137(2)(b)-(c) read with sections 137(5)-(6).
58
Section 137(2)(b).
59
Section 137(2)(c).
60
Section 137(6).
61
Section 137(3) read with section 137(4).
33
compensation payable in the absence of guidelines established by the
Minister.62
THE MINISTER‟S FAILURE TO ESTABLISH GUIDELINES
74. The facts demonstrate that the Minister has failed to establish guidelines
as contemplated by section 137(5) or at all.
75. No justification of any kind has been suggested for this abject failure.
76. In failing to establish the required guidelines, the Minister has acted ultra
vires and unconstitutionally.63
77. The key issue for this Court to determine is what is the appropriate
remedy, to which we now turn.
THE REMEDY
78. As appears from what is set forth above, the instant application clearly
qualifies as a constitutional matter within this Court’s power.
79. The Applicants submit that accordingly the only issue as far as remedy is
concerned, is whether that which the Applicants impugn fall within the
purview of section 172(1)(a).
62
Cf. Dawood (supra) and Hoexter (supra) at 46.
63
Pharmaceutical Manufacturers (supra) and Cf section 4(3) of the Promotion of Administrative
Justice Act 36 of 2000.
34
80. If the Applicants can satisfy this Court that they have standing - and it is
submitted that it is clear that they enjoy standing - as contemplated by
section 38 of the Constitution, then if the issues raised by the Applicants
are constitutional matters within this Court’s jurisdiction as they are, and it
concludes that the impugned conduct is inconsistent with the Constitution,
it (this Court) is compelled to make an appropriate declaratory order.64 No
question of discretion arises.
81. As the Constitutional Court stressed in Dawood:
“[59] It is now necessary to consider the appropriate order to be made in
this case. Section 172 of the Constitution provides that
“(1) When deciding a constitutional matter within its power, a
court —
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent
of its inconsistency; and
(b) may make an order that is just and equitable,
including —
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for
any period and on any conditions, to allow the
competent authority to correct the defect.
(2) (a) The Supreme Court of Appeal, a High Court or a court of
similar status may make an order concerning the
constitutional validity of an Act of Parliament, a provincial Act
or any conduct of the President, but an order of constitutional
invalidity has no force unless it is confirmed by the
Constitutional Court.
(b) A court which makes an order of constitutional invalidity
may grant a temporary interdict or other temporary relief to a
party, or may adjourn the proceedings, pending a decision of
64
See Dawood, at paras [59] –[60]; Matatiele Municipality and Others v President of the Republic
of South Africa and Others (No 2) 2007 (6) SA 477 (CC) at para [87].
35
the Constitutional Court on the validity of that Act or
conduct.”
[60] It is clear from this provision that a court is obliged, once it is has
concluded that a provision of a statute is unconstitutional, to declare that
provision to be invalid to the extent of its inconsistency with the
Constitution. In addition, the court may also make any order that it
considers just and equitable including an order suspending the declaration
of invalidity for some time.
[61] Although this matter is before this Court for the confirmation of an
order of invalidity, there is nothing in section 172 that suggests that the
Court‟s power to make appropriate orders is limited in such matters. It
seems clear from the language of section 172(1), in particular, that as long
as a court is deciding a constitutional matter “within its power”, it has the
remedial powers conferred by that section, as broad as they may be. In the
circumstances, therefore, the Court is not empowered merely to confirm or
refuse to confirm the order that is before it. The Court, as section 172(1)
requires, must, if it concludes that the provision is inconsistent with the
Constitution, declare the provision invalid and then the Court may make
any further order that is just and equitable.”
(underlining added)
and in Matatiele Municipality and Others v President of the Republic of
South Africa and Others (No 2)65 at paragraph [87] Ngcobo J noted:
“The conduct of the provincial legislature of KwaZulu-Natal in failing to
comply with its constitutional obligation to facilitate public participation
prior to taking a decision to approve that part of the Twelfth Amendment
that affected Matatiele was a violation of the provisions of section 118(1)(a)
and section 74(8) of the Constitution. That conduct on the part of KwaZulu-
Natal must, pursuant to section 172(1)(a) of the Constitution, be declared to
be inconsistent with section 118(1)(a) and section 74(8). But what are the
consequences of this unconstitutional conduct?
(Underlining added)
65
2007 (6) SA 477 (CC) at para [87].
36
82. In Beheersmaatschappij Helling I NV and Others v Magistrate, Cape
Town, and Others,66 Thring J. accepted the above dicta and put it thus at
120 b-c:
“Such conduct is clearly inconsistent with the Constitution, and is
consequently invalid. Section 172(1) of the Constitution enjoins this Court,
in these circumstances, to declare it to be so. No discretion is afforded to
the Court.”
(Underlining added)
83. It is the Constitution that determines what the approach of a court deciding
a constitutional matter must be.67
84. Because the Minister’s conduct in failing to establish guidelines as
contemplated by section 137(5) is unlawful and unconstitutional, this Court
is constrained to issue a declaratory order to that effect by virtue of section
172(1)(a) of the Constitution.
85. Section 172(1)(b) of the Constitution provides this Court with a discretion
to make any order that is just and equitable consequent upon the
declaratory order made under section 172(1)(a).
86. It is submitted that in the circumstances of this application, bearing in mind
the Minister’s unacceptable and indeed intransigent attitude, the only
66
2007 (1) SACR 99 (C) SACR.
67
According to section 2 of the Constitution, it is the supreme law and all law or conduct that is
inconsistent with it is invalid.
37
conceivable order which falls to be made is to issue a mandamus68 to the
effect that he must establish guidelines as contemplated by section 137(5)
of the Firearms Act within 60 days of this Court’s order and report that fact
by way of affidavit to this Court within 75 days of this Court’s order, 69 with
a punitive costs order.70
87. In the circumstances, it is submitted that the following orders fall to be
made:
89.1 It is declared that the failure of the Minister of Safety and Security
to establish guidelines as contemplated by section 137(5) of the
Firearms Control Act No 60 of 2000 is unlawful and inconsistent
with the Constitution;
89.2 The Minister of Safety and Security is ordered to establish
guidelines as contemplated by section 137(5) of the Firearms
Control Act within 60 days of this order and to inform this Court by
way of an affidavit by the Minister within 75 days of this order that
he has done so; and
68
See Dawood at para [67].
69
Cf. Von Abo at 565; Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114
(C) at 129C-130I.
70
South African Liquor Trader’s Association v Gauteng Liquor Board and Others 2009 (1) SA 565
(CC) at para [48] with reference to Nel v Waterberg Landbouers Ko-operatiewe Vereeniging 1946
at 607.
38
89.3 The Minister of Safety and Security is to pay the Applicants’ costs
of suit on an attorney and own client scale, which costs are to
include the costs attendant upon the employment of two counsel.
Peter Hodes SC
Anton Katz
Applicants‟ Counsel
Chambers, Cape Town
14 August 2009